The activation of FM chips already built into smartphones would enhance broadcasters' ability "to distribute lifesaving, emergency alert notifications before, during and after natural and man-made emergencies,” the Multicultural Media, Telecom and Internet Council (MMTC) told FCC Chairman Tom Wheeler in an open letter Tuesday. During Hurricane Katrina, the FM chip “would have added a layer of security for consumers, first responders and other stakeholders interested in the timely distribution of emergency response data,” MMTC said. During that emergency, terrestrial radio “was the only viable method of mass communications, and the activation of FM chips would have potentially extended this service to wireless consumers who are more likely to be ‘smartphone dependent,’ minority, multilingual and, in some cases, geographically isolated,” it said. “With your support and endorsement we could make radio a reality in all smartphones,” it told Wheeler. “You can help by encouraging all cellular carriers to turn on the FM Chips in their phones. The goal is to provide all Americans with peace-of-mind during emergencies so they will be kept abreast of lifesaving alerts if ever needed.” In House testimony in March, Wheeler expressed doubts whether the FCC “should be forcing wireless carriers to activate these chips or whether they ought to be leaving that to consumer choice” (see 1503200031). Those remarks drew a sharp response from NAB, which said broadcasters weren't seeking a government mandate on activating FM chips in smartphones, but were merely seeking the FCC's help “in using its influence in enabling a technology that can save lives in emergency situations.”

A court motions panel dismissed an FCC request to hold in abeyance Neustar's challenge to the agency's order conditionally choosing Telcordia as the next local number portability administrator (LNPA). But the order Tuesday by Judges Judith Rogers and Robert Wilkins of the U.S. Court of Appeals for the D.C. Circuit referred the commission's request to dismiss the Neustar challenge to a panel that will review the case on its merits (Neustar v. FCC, docket 15-1080). An FCC motion had asked the court to dismiss the Neustar challenge, or in the alternative hold it in abeyance pending final commission action in the LNPA proceeding. The order Neustar is challenging "is not final Commission action; rather, it is an interim step in a process that, after additional Commission action, may result in the selection of a new LNPA," the FCC said. Because the order isn't final, the court lacks jurisdiction to review it, the FCC argued. Neustar opposed the motion and argued the FCC had designated Telcordia as the next LNPA: "As the culmination of a four-year selection process, that selection decision is final, not tentative." In their order Tuesday, the judges directed the court's clerk "to enter an appropriate briefing schedule" without elaborating. Neustar had asked the D.C. Circuit to expedite briefing, but the commission opposed the request.

The FCC put together a task force, including representatives of all five commissioner offices, to push forward on process reform, said Chairman Tom Wheeler's special counsel Diane Cornell Tuesday in a blog post. “The task force will consider ways to improve the effectiveness of the Commission’s internal processes from the Commissioners’ perspective, taking into account views expressed by internal and external stakeholders about the FCC’s internal processes and protocols,” Cornell said. The group will “seek public input from those who regularly interact with the FCC” and also look at the practices of similar agencies, she said. The task force will take on several hot-button issues, including the “use of delegated authority, and practices for providing notice of matters being handled on delegated authority,” Cornell said. Commissioners Ajit Pai and Mike O’Rielly have complained that FCC staff make too many decisions on delegated authority (see 1403180024). Other topics being reviewed include the FCC consent agenda, “approaches for providing increased transparency of FCC procedures and protocols” and “practices to track, disclose and encourage prompt Commissioner votes on items on circulation,” Cornell said.

At least three more parties asked a federal court for permission to file amicus briefs in the litigation over the FCC net neutrality and broadband reclassification order. This week, the Center for Boundless Innovation (CBIT), International Center for Law and Economics (ICLE) and Phoenix Center filed motions (here, here and here) with the U.S. Court of Appeals for the D.C. Circuit to file briefs supporting petitioners challenging the FCC order, which are Alamo Broadband, the American Cable Association, AT&T, CenturyLink, CTIA, Daniel Berninger, Full Service Network, NCTA, USTelecom and the Wireless Internet Service Providers Association. All but FSN is challenging the FCC order as overly regulatory. CBIT said it would argue that broadband ISPs are part of the "press" that's protected by the First Amendment from common carrier regulation imposed by the FCC through its reclassification of broadband Internet access services under Title II of the Communications Act. The ICLE would argue the order exceeded FCC delegated authority, and even if it didn't it acted arbitrarily and capriciously "by failing to consider relevant economic literature, evidence, and the costs" of its rules. The Phoenix Center would address a "narrow legal issue deliberately sidestepped" by the FCC in lumping "edge providers" with retail customers of "Broadband Service Providers," which the center said "appears to be a strategic choice designed to obscure the regulatory implications of reclassification on the end-user termination service provided by BSPs to edge providers." If the FCC had properly followed D.C. Circuit precedent in the 2014 Verizon v. FCC case, it should have defined what a "just and reasonable" rate was for terminating end-user traffic, which would have potentially conflicted with the agency's net neutrality rule prohibiting paid prioritization and effectively mandating a zero price, the Phoenix Center said. Other parties recently moved to file amicus briefs (see 1507150012 and 1507140035).

A draft FCC order to approve AT&T's acquisition of DirecTV with conditions is circulating, Chairman Tom Wheeler said late Tuesday in an emailed statement. "If the conditions are approved by my colleagues, 12.5 million customer locations will have access to a competitive high-speed fiber connection," Wheeler said. "The conditions will build on the Open Internet Order already in effect, addressing two merger-specific issues. First, in order to prevent discrimination against online video competition, AT&T will not be permitted to exclude affiliated video services and content from data caps on its fixed broadband connections. Second, in order to bring greater transparency to interconnection practices, the company will be required to submit all completed interconnection agreements to the Commission, along with regular reports on network performance."

A draft notice of inquiry on the FCC's advanced telecom mandate under Section 706 of the 1996 Telecom Act is circulating among commissioners, said the agency's latest posting of Items on circulation, which is updated weekly. Listed is an "Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996." Last year's inquiry led the FCC to increase its general broadband speed definition to 25/3 Mbps.

The FCC likely hasn't rejected outright long-form applications of Northstar Wireless and SNR Wireless, the designated entities that Dish Network used to indirectly buy, using bidding credits, the second-most AWS-3 spectrum of any player in the auction (see 1507160054), Wells Fargo emailed investors Friday. Various news outlets reported Thursday the licenses are rejected under the order circulated by FCC Chairman Tom Wheeler. Industry officials told us that the order appears instead to refer questions about possible collusion to the Enforcement Bureau for further investigation. “We checked with our contacts” and “this order could just be a referral to the FCC's Enforcement Bureau to investigate unlawful collusive bidding,” Wells Fargo said. “Clearly this wouldn't be a positive either, but our point is no one knows what this document actually says.” Lawyers with ties to the DEs told us they have not been briefed on the FCC order. In comments on the competitive bidding rules approved by the agency Thursday, Commissioner Mignon Clyburn referred only to the “alleged activity that people have criticized in the AWS-3 auction.” The last thing either Dish or the FCC likely wants is another auction, said one lawyer who has represented a number of DEs. The most likely scenario would be the FCC coming up with a circumstance for granting the licenses, and Dish making up the financial difference and then trying to figure a path out of its DE arrangement. Another option before the FCC is to designate the matter for a hearing -- the same step that led to the implosion of Comcast's planned buy of Time Warner Cable -- the attorney said. In that scenario, Dish might then try to go through the hearing and make its case, arguing that its DE arrangement was similar to others the FCC has approved. “There’s some truth to that,” the attorney said. “If the FCC determined there was collusive bidding Verizon might have a strong case to sue the FCC to invalidate the entire AWS-3 auction and re-auction all the licenses,” BTIG analyst Walter Piecyk told us Friday.

Correction: The proposed FCC wireless mics report and order addresses only licensed mics, but a Part 15 report and order addresses unlicensed devices, including unlicensed mics (see 1507160054).

The FCC has no place in regulating online video distributors, Commissioner Ajit Pai said Friday. "Even though online video has thrived precisely because of the government's hands-off approach," some in government "view the Internet as too important not to regulate," Pai said in a Churchill Club address that later was posted online. The FCC is considering reinterpreting the definition of multichannel video programing distributors to include over-the-top (OTT) providers of multiple streams of prescheduled, linear video programming -- a move that faces pushback from numerous media companies as well (see 1507140011). While backers of the move say such regulation would assist online video distributors (OVDs), "the benefits promised are illusory," in large part because the Copyright Office does not consider OTT providers as cable systems and thus have no legal right to a compulsory copyright license to show broadcast programming, Pai said. "The FCC's regulations would likely compel retransmission consent negotiations that lead to the carriage of little to no programming." While nothing stops broadcast programmers and OVDs from negotiating their own carriage and licensing agreements, he said, the FCC has no legal ability to force such negotiations "because copyright law stands in their way." Instead, Pai said, "It's all about increasing the FCC's authority -- about putting the FCC at the head of the digital table and bringing another industry within our reach." If the agency does in fact begin regulating only a certain segment of OTT operators, that almost surely will lead to the agency seeking to regulate other segments, Pai said. "I can even predict one of the arguments that will be made: How is it fair to regulate one type of online video provider but not another?"

FCC Commissioner Mike O'Rielly will give the keynote address at a Free State Foundation seminar, "Implementing Real Regulatory Reform at the FCC," to be held July 28, noon to 2 p.m. O'Rielly is scheduled to talk about regulatory reform proposals he has put forward at the agency, with a panel discussion to follow. The event will be at the National Press Club. For more information, contact the Free State Foundation at info@freestatefoundation.org.